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Devine v. Kapasi

May 7, 2010


The opinion of the court was delivered by: David H. Coar United States District Judge



Plaintiffs Jeff Devine and his company, Devine Solutions, Inc., have filed suit under the Stored Communications Act, 18 U.S.C. § 2701, the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and Illinois law, alleging that the defendants electronically trespassed upon the Devine Solutions computer network and tampered with electronic communications and other data stored there. The defendants have moved to dismiss the complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). For the reasons given below, the motion to dismiss is GRANTED in part and DENIED in part. Counts III-IV of the complaint are dismissed without prejudice.


The relevant facts alleged in the complaint, which the court must take as true for present purposes, are as follows:

Prior to August 21, 2009, Jeff Devine and Sabir Kapasi each owned fifty percent of the common stock of a computer-services company called Geus Technology, Inc. Geus provided programming, configuration, and other technical support for clients who used a popular software application (created by a German software company, not by Geus) known as SAP. Geus's unique support model allowed it to manage and maintain its clients' SAP applications remotely, as well as on-site at its clients' locations throughout North America. Huseni Kapasi and Greg Carlo were employees of Geus.

On August 21, 2009, after several months of contentious and protracted negotiations, Geus (through Sabir Kapasi), Sabir Kapasi, and Devine executed a stock-redemption agreement, pursuant to which Geus redeemed Devine's fifty-percent ownership stake in the company. The parties agreed to an equitable division of Geus's assets, and as memorialized in Schedule 1.2 of their agreement, some of those assets were assigned and transferred to Devine. Among those assets was a server identified as "Server DL380-GEUS05" (the "GEUS05 Server"), which had been a component of Geus's computer network. Following the close of the stock redemption, Devine incorporated the GEUS05 Server into the network owned and operated by Devine Solutions, which comprises computers, servers, and remote access equipment secured by password-protected accounts.

As part of their ownership and/or employment with Geus, Defendants Sabir Kapasi, Huseni Kapasi, and Carlo utilized confidential passwords to access the Geus computer network, including the GEUS05 Server. Until the Geus-issued passwords were terminated, Defendants could access the Devine Solutions network through the GEUS05 Server. Within a couple of hours after the closing of the stock-redemption transaction, and continuing for several days, Defendants systematically and without authorization accessed the Devine Solutions network, including the GEUS05 Server, and further accessed, transferred and deleted electronic information and files stored on the GEUS05 Server. At 9:40 p.m. on Friday, August 21, 2009 (a few hours after the closing of the stock redemption), Carlo remotely accessed the GEUS05 Server from an unknown computer (with the assigned IPA using the "gcarlo" account and password issued by Geus. Carlo's access was captured by a secure log maintained on the GEUS05 Server. Through the GEUS05 Server, Carlo logged into the Devine Solutions network's document- tracking system, known as the Owl Document Management System, which also logs access and user activity. On Saturday, August 22, 2009, according to the Owl log, Sabir Kapasi used the Geus-issued "sabirk" account and password and an unknown computer (with the assigned IPA to log into the Devine Solutions network through the GEUS05 Server and access the Owl document system. Lastly, the Owl log indicates that on August 25, 2009, Huseni Kapasi used the Geus-issued "hkapasi" account and password and an unknown computer (with the assigned IPA to remotely access the Devine Solutions network through the GEUS05 Server; however, he was denied access to Owl.

The Owl log shows that a substantial volume of electronic information and files were deleted from the Devine Solutions network after the closing of the stock-redemption transaction. Plaintiffs' investigation has revealed that, to date, more than 2000 files and 350 file folders containing electronically stored information and communications were deleted or otherwise transferred from the Devine Solutions network-but not by Devine or anyone working under his direction.


To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), that is, "a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (Twombly applies to "all civil actions"). This requirement imposes two relatively low hurdles. First, a complaint "must describe the claim in sufficient detail to give the defendant 'fair notice of what the claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1964). Second, the allegations "must plausibly suggest that the defendant has a right to relief, raising that possibility above a 'speculative level.'" Concentra, 496 F.3d at 776. If the allegations do not suggest a right to relief-if for instance, a plaintiff relies merely on conclusions, labels, or formulaic recitations of the elements of a cause of action-a Rule 12(b)(6) motion should be granted. See Twombly, 550 U.S. at 570.


Counts I-II: Electronic Communications Privacy Act

In Counts I-II, Plaintiffs assert a cause of action under Title II of the Electronic Communications Privacy Act, also known as the Stored Communications Act ("SCA"). See 18 U.S.C. §§ 2701-2712. Congress enacted the relevant provision of the SCA, id. § 2701, to protect privacy interests in personal and proprietary information from the mounting threat of computer hackers "deliberately gaining access to, and sometimes tampering with, electronic or wire communications" by means of electronic trespass. See S. Rep. No. 99-541, at 3 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, at 3557. Accordingly, any "aggrieved" party may bring a civil action against a defendant who "intentionally accesses without authorization" or "intentionally exceeds an authorizations to access" a "facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system." 18 U.S.C. § 2701(a)(1)-(2); see § 2707(a) (providing private right of action). An "electronic ...

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